CERTIFICATE COURSE ON HINDU MARRIAGE ACT

ASSIGNMENT

Name : - Timisha Chauhan

Email ID :- timishach20@gmail.com

Contact no. – 8005613637

Hindu Marriage Act (ASSIGNMENT)

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ANALYTICAL QUESTIONS [Within 200 Words]

10 Marks Each

1. If you had the power to make an amendment to the Hindu Marriage Act what would it
be?

Ans. 1 One issue is the excessive stress on ceremonies. Under Hindu law, it is through
solemnization with the requisite rites that the status of husband and wife can be conferred,
and if these are not performed, the marriage is null and void. The burden of proving a custom
rest with the party using it. This is confusing and complex. Many women are not aware of the
ceremonies applicable to them. She may happily exchange garlands, put vermillion and have
her husband declare her wife with god as witness, without realising that this is not a valid
marriage under law since these are only ‘mock ceremonies’. This undue stress on ceremonies
has let many persons accused of bigamy go scot-free. Second issue is that many cases of
prosecution for bigamy fail because of the lack of proof that the second marriage was
solemnised with requisite rites and ceremonies. To maintain the charge under section 494
IPC, there must be evidence of this, which first wives find hard to produce. These loopholes
in the law are exploited by the man to defend themselves, in cases where they have duped
women into second marriages. The very requirement of monogamy in a Hindu marriage is
defeated.

2. How can India implement Compulsory registration of marriages?

Ans.2 The central government has to accept the Law Commission’s recent recommendation
to make marriage registration mandatory for couples of all communities across the country.
In a report submitted to the law ministry on July 4, 2017, the commission pushed for
compulsory registration of marriage within 30 days of the wedding, proposing a fine of Rest
5 per day for any delays after that. Mandatory registration, the report reasons, would help
prevent child marriage, fraud, bigamy and husbands deserting their wives. It would be
particularly helpful for women seeking their rights as wives. The Law Commission also
suggested linking marriage registration with Aadhaar, the 12-digit biometric-based unique
identity number, to ensure universal traceability.

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 3. Has maintenance been provided in a void marriage in any landmark precedent? If yes,
which one? Do you agree with the ratio?

Ans. 3 The Punjab and Haryana high court has made it clear that a woman would be entitled
to permanent alimony even though her marriage was declared illegal, null and void. The high
court was of the view that she would be entitled to maintenance and permanent alimony
(lump-sum) in terms of Section 25 of the Hindu Marriage Act. In this case, marriage of an
Amritsar woman was declared null and void by a local court on the grounds that she had
concealed the fact of her previous marriage. However, the HC division bench, comprising
Justice Rakesh Kumar Jain and Justice Harnaresh Singh Gill, has passed these orders while
hearing the woman's petition. The issue was if the appellant-wife would be entitled to
permanent alimony even if her marriage had been declared void.

4. How do you think the process of Divorce can be made easier?

Ans. 4 The Union cabinet had cleared the way for couples to obtain a swift divorce in
situations of "irretrievable breakdown of marriage". The Marriage Laws (Amendment) Bill
2010 amended two acts governing marriage - the Hindu Marriage Act 1955 and the Special
Marriage Act 1954. Section 13-B of the Hindu Marriage Act and Section 28 of the Special
Marriage Act also provide for divorce by mutual consent as a ground for presenting a petition
for divorce. Such a petition, if not withdrawn before six months after its presentation or not
later than 18 months, then the court may, on being satisfied, grant decree of divorce by
mutual consent.

In cases of mutual consent, it has often been found that one of the parties suddenly abstains
himself or herself from court and keeps the divorce proceedings inconclusive, causing
considerable hardship to the party. This will help such parties from the long drawn
harassment in courts.

5. Is restitution of conjugal rights not a violation of your right to privacy and thus
violating your basic fundamental right? Is it constitutionally valid or not?

Ans. 5 Taking into consideration the fact that marital rape is not an offence in India,
compelling a woman to live with her husband takes away her right to choose whether or not
to have sexual intercourse, as her husband can forcibly have sexual intercourse with her
without legal sanction. Thus, even if section 9 of the Hindu Marriage Act does not make
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sexual intercourse compulsory, compelling a woman to stay with her husband in the
matrimonial home puts her at risk of marital rape, depriving her of autonomy over her own
body and thus violates her right to privacy. With the gradual understanding that the law needs
to intervene in family matters and protect the rights of individuals, restitution of conjugal
rights has been criticized across common law jurisdictions, leading to its abolition in the UK,
Australia, Ireland and South Africa. It is time that India, too, abolishes restitution of conjugal
rights, taking into consideration the blatant breach of the right to privacy it represents.

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